Language disadvantage in Malaysian litigation and arbitration

Abstract

ABSTRACT: Based on extensive observations of courtroom proceedings and more limited observations of arbitration practice, this study compares how each system approaches language disadvantage. In Malaysian common law the usual constraints on courtroom discourse, institutionalised by de jure rules of speaking and reinforced by professional practice, are supplemented by a language policy, enshrined in the constitution, statutes and judicial directives, which requires the use of Malay while also allowing English where deemed in the interests of justice. The result is a bilingual system, with all other languages admissible only through interpretation. In the fast‐growing alternative dispute sector, however, there are few hard and fast rules governing either code choice or discourse. With most Malaysian arbitrations involving commercial disputes, English is the dominant medium, but as in the courts, English‐Malay code‐switching is common. Ways of speaking are generally more relaxed than in the courts, but with a majority of alternative dispute resolution (ADR) advocates coming from common law, many discursive practices are carried over. While the more relaxed atmosphere of ADR seems to encourage freer discourse than in the courts, there are some indications that current practice may be underestimating the needs of participants who are less proficient in English. The stricter rules imposed on courtroom discourse may inhibit free discussion but they do reveal a high awareness of the problems of language disadvantage.

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